Most criminal cases boil down to the “whodunit?” This means that, in most criminal cases, there is no question that the crime was committed. The only question for the jury is whether the Defendant committed it. The prosecutor’s job is to persuade the jury – beyond a reasonable doubt – that the Defendant is the culprit. Studies show that juries look for certain things. Most jurors’ experience with the criminal justice system comes from watching television and movies. In any event, juries in criminal cases look for things such as DNA and fingerprint evidence, confessions, eyewitness identifications.

Studies show that one of these categories of “whodunit” evidence is inherently unreliable – eyewitness identifications. Nonetheless, the courts permit such evidence and the juries want such evidence. There are only two circumstances in which the courts do not permit eyewitness identification. One of these exclusion categories involves the Sixth Amendment right to counsel. If the Defendant has been formally charged (usually meaning an indictment by a grand jury or a criminal information filed by a prosecutor), the Defendant is entitled to counsel (unless the Defendant makes a knowing and intelligent waiver of counsel) at every critical stage. Lineups and one-on-one show-ups are critical stages, but photo arrays are not critical stages. Even if the Defendant has not yet been formally charged, the Defendant is entitled to counsel if the Defendant is identified during a preliminary hearing. One of these exclusion categories involves the Fourteenth Amendment Due Process Clause, which precludes the use of identifications that are unreliable. This argument almost never prevails, and courts permit almost all identifications to go to the jury.

I have taught Constitutional Criminal Procedure at the University of Baltimore School of Law for more than three decades. Fox 45 in Baltimore contacted me to request my permission to conduct an unscientific, but nonetheless interesting, experiment. Most of my classes are large – 50 to 80 students. This semester, for only the second time in 31 years, I am not teaching a large section. However, I am teaching Judicial Process, which is a classroom component that accompanies the Judicial Internship Program, through which I place about 150 students a year with the judges – about 25 in the fall, 25 in the spring, and 100 in the summer. This semester I have 23 students. These students were the guinea pigs in the experiment that Fox 45 and I conducted. View the video from Fox 45, and you will see that half of my class identified the correct person and half of the class would have convicted the wrong person.

http://www.foxbaltimore.com/players/news/cover_story/vid_227.shtml

Scary. But it shows how imprecise eyewitness identifications are. Nonetheless, juries place a lot of weight on such identifications, as the prosecutor says, “Let the record reflect that the witness is pointing to the Defendant as the assailant.” You may recall that the first death row inmate in the United States to be released through DNA evidence was Kirk Bloodsworth, who was convicted of rape and murder in Baltimore County, Maryland. If DNA had not been discovered, or, if there was no DNA available in that case, where would Kirk Bloodsworth be? The advent of DNA has resulted in the release of more than 200 innocent people, many of who had been convicted on the strength of eyewitness identifications.

Professor Byron Warnken